Landes v. Town of North Hempstead

• Decision Date: 26 October 1967
• Parties: , 231 N.E.2d 120 Irwin J. LANDES, Appellant, v. TOWN OF NORTH HEMPSTEAD, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 441

284 N.Y.S.2d 441

20 N.Y.2d 417, 231 N.E.2d 120

Irwin J. LANDES, Appellant, v. TOWN OF NORTH HEMPSTEAD, Respondent.

Court of Appeals of New York.

Oct. 26, 1967.

Irwin J. Landes, in person, and Morton H. Rosen, New York City, for Irwin J. Landes, appellant.

Robert C. Meade, Town Atty. (Arthur W. Block, of counsel), for respondent.

Alfred Miller, New York City, for New York Civil Liberties Union, amicus curiae.

FULD, Chief Judge.

The plaintiff, a duly designated nominee of the Democratic party for the office of councilman in the Town of North Hempstead, brings this action against the town for a judgment declaring unconstitutional and void those provisions of sections 23 and 23--a of the Town Law, Consol.Laws, c. 62 which require a holder of an elective town office to be an owner of record of real property within the town. ¹ Although the plaintiff owns no property in North Hempstead--it appears that he transferred title of a jointly owned home (in which the family presently lives) to his wife in 1959--he has resided in the town for about 15 years.

Upon motions by both parties for summary judgment, the court at Special Term granted judgment for the defendant dismissing the complaint on the authority of Matter of Becraft v. Strobel, 274 N.Y. 577, 10 N.E.2d 560, where, in 1937, this court upheld the constitutionality of section 23. The plaintiff appeals to us directly, pursuant to CPLR 5601 (subd. (b), par. 2), from the judgment rendered at Special Term.

Recent developments in constitutional law, as well as changes in the pattern of town and suburban living, call for a reconsideration of our 1937 decision in Becraft (274 N.Y. 577, 10 N.E.2d 560, supra) ² and of the constitutionality of the statutes here involved. (Cf., e.g., Municipal Gas Co. of City of Albany v. Public Serv. Comm., Second Dist., 225 N.Y. 89, 95--96, 121 N.E. 772, 773--774; Baker v. Carr, 369 U.S. 186, 254, 82 S.Ct. 691, 7 L.Ed.2d 663; Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 79 L.Ed. 949.) In our view, the legislation must be held unconstitutional whether we regard it from the viewpoint of the person seeking office or of the individual voter.

Although 'the Legislature may prescribe qualifications for office * * * it has been settled law from the earliest period in the history of our state that it cannot enact arbitrary exclusions from office.' (Matter of Callahan, 200 N.Y. 59, 61, 93 N.E. 262; see, also, People ex rel. Devery v. Coler, 173 N.Y. 103, 118, 65 N.E. 956, 960; Rogers v. Common Council of City of Buffalo, 123 N.Y. 173, 188, 25 N.E. 274, 278, 9 L.R.A. 579; Barker v. People, 3 Cow. 686.) Qualifications for office must have a rational basis, such as age, integrity, training or, perhaps, residence. (Cf., e.g., Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169.) If a classification is employed in prescribing qualifications, it must be nondiscriminatory and 'based on a real and substantial difference having reasonable relation' to the object sought to be accomplished by the legislation. (Quaker City Cab Co. v. Commonwealth of Penna., 277 U.S. 389, 402, 48 S.Ct. 553, 555, 72 L.Ed. 927; see, also Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, supra; cf. Brown v. State of Louisiana, 383 U.S. 131, 143, 86 S.Ct. 719, 15 L.Ed.2d 637; Matter of Madole v. Barnes, 20 N.Y.2d 169, 282 N.Y.S.2d 225, 229 N.E.2d 20; East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y.2d 129, 133, 272 N.Y.S.2d 341, 344, 219 N.E.2d 172, 174.) The ownership of land, however, as a prerequisite, a condition precedent, to holding elective town office constitutes an 'invidious discrimination' against nonlandowners, a sort of economic gerrymandering which runs afoul of the equal protection and due process clauses of both Federal and State Constitutions. (Cf. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, supra; Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656.) As the Supreme Court observed in the poll tax case, involving the qualifications of voters, 'Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race * * *, are traditionally disfavored.' (Harper v. Virginia State Bd. of Elections, 383 U.S., at p. 668, 86 S.Ct., at p. 1082, supra.)

Underlying the Becraft decision that the legislation in question was valid was the rationale that owners of real property "may be expected to be careful and economical in administering" town affairs (Special Term opinion of DOWLING, J., 158 Misc. 844, 850, 287 N.Y.S. 22, 30). At a time when the taxation of its real property was the chief concern of a town, this reasoning may have had some validity, although we fail to see how it may be said that qualities of carefulness and frugality were ever the monopoly of those owning real property. Indeed, most town problems affect owners and tenants alike: zoning, highways, parks, fire, water and sewage districts, traffic regulations--to name but a few.

Ownership of real property does not render one more interested in, or devoted to, the concerns of the town. In a society such as ours, characterized by its 'mobility' and 'anonymity' (Cox, The Secular City (rev. ed., 1966), p. 33), a landowner is no more likely to be permanently established in a town--and, by that token, better qualified to govern--than one who is not a property owner. Examples come readily to mind which demonstrate the unrealistic character of the property qualification: an elected town councilman, suddenly compelled by financial reverses to sell his home and move into an apartment, would be required to resign from office; an apartment dweller who owned a taxpayer in town but who commuted to his place of business in, for instance, New York City and took no interest or part in civic affairs would be fully eligible for town office; and an apartment dweller not owning real property but with a place of business in town and deeply involved in community affairs, would be ineligible. All in all, we suggest that it is impossible today to find any rational connection between qualifications for administering town affairs and ownership of real property.

Turning from the plaintiff as candidate to the plaintiff--along with other residents of the town--as voter, the proscription against nonlandowners as town councilmen amounts to a 'dilution' or 'debasement' of the vote not unlike that occasioned by the malapportionment which the Supreme Court has held violative of the equal protection clause. (See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821.) '(T)he right of suffrage', said the court in the Reynolds case (377 U.S., at p 555, 84 S.Ct., at p. 1378), 'can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' The plaintiff's right of franchise, as well as that of all other voters, has been equally circumscribed by excluding from their choice for a town elective office those who do not own real property.

The statutory restriction also violates section 1 of article I of the State Constitution which provides that 'No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof'. Wide latitude in choosing public officers is among the rights secured by this constitutional provision. In ffect, it vests electors with the right to choose public officers 'on whatever principle or dictated by whatever motive they see fit, unless those motives contravene common morality'. (Matter of Callahan, 200 N.Y. 59, 62, 93 N.E. 262, 263, supra; see, also, Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, supra.) The denial of such a right to electors on property grounds becomes more egregious today, when a large proportion of the population in many towns, especially in suburban areas, are apartment house dwellers. ³ Moreover, we know from experience that it is often the wife who holds record title to a home or other property and that, with increasing frequency, owners of real property have occasion to place the Record ownership in real estate investment trusts or syndicates.

In the view thus taken, we find it unnecessary to consider the other arguments advanced by the plaintiff.

The judgment appealed from should be reversed, with costs, and the declaratory judgment sought in the complaint granted.

VAN VOORHIS, Judge (dissenting).

The decision about to be rendered seems to me to constitute usurpation by the courts of the powers of the Legislature or the people through constitutional amendment. Prescribing the qualifications of public officers has long been regarded as a function of the Legislature. It was written by Justice WILLIAM F. DOWLING at Special Term in Matter of Becraft v. Strobel, 158 Misc. 844, 850, 287 N.Y.S. 22, 29, affd. without opn. 248 App.Div. 810, 290 N.Y.S. 556, affd. 274 N.Y. 577, 10 N.E.2d 560:

'Section 23 of the Town Law is not obnoxious to either the State or Federal Constitutions. The Legislature 'may, in the exercise of its judgment for the public good, limit the number from whom the elector may select, for thus to legislate is within the general and sovereign power of legislation, which it constitutionally possesses.' (People ex rel. Furman v. Clute, 50 N.Y. 451, 460; People ex rel. Devery v. Coler, 173 id. 103, 118, 65 N.E. 956; Rogers v. Common Council of City of Buffalo, 123 id. 173, 183, 185, 25 N.E. 274, 9 L.R.A. 579; Scott v. Village of Saratoga Springs, 131 App.Div. 347, 921, 115 N.Y.S. 796; affd., 199 N.Y. 178, 92 N.E. 393.)

'The purpose of section 23 of the Town Law is to secure for the position of supervisor in the various towns of the State 'persons who are interested and by reason...